Southwestern Bell Telephone Company

B-292476: Oct 1, 2003

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Southwestern Bell Telephone Company protests the award of a contract to Adelphia Business Solutions, Inc. under request for proposals (RFP) No. F34608-03-R-5012, issued by the Department of the Air Force for commercial communication services at McConnell Air Force Base (AFB), Kansas. Southwestern Bell challenges the agency's past performance evaluation and its affirmative determination of Adelphia's responsibility. In addition, Southwestern Bell asserts that Adelphia is ineligible for award because it falsely certified that none of its principals had been indicted.

We sustain the protest.

B-292476, Southwestern Bell Telephone Company, October 1, 2003




DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.

Decision

Matter of: Southwestern Bell Telephone Company

File: B-292476

Date: October 1, 2003

James J. Regan, Esq., Daniel R. Forman, Esq., and J. Catherine Kunz, Esq., Crowell & Moring, for the protester.
James L. Feldesman, Esq., and Kathy S. Ghiladi, Esq., Feldesman Tucker Leifer Fidell, and Brian T. Fitzgerald, Esq., LeBoeuf, Lamb, Greene & MacRae, for Adelphia Business Solutions, Inc., an intervenor.
Clarence D. Long, III, Esq., and Donald Mosely, Esq., Department of the Air Force, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest challenging agencys evaluation of the protesters and awardees past performance, which found the two firms had essentially equal past performance, is sustained, where the agency did not consider awardees record of integrity and business ethics, as required by the solicitation, and the record raises serious concerns that awardee may have problems in this area, and where agency did not document its assessment of protesters past performance, despite the fact that solicitation provided for qualitative assessment of offerors past performance.

2. Contracting officers affirmative determination of the awardees responsibility is not reasonably based where, despite having general awareness of misconduct by some of awardees principals and parent company, the contracting officer did not obtain sufficient information about or consider the awardees record of integrity and business ethics in making his responsibility determination.

DECISION

Southwestern Bell Telephone Company protests the award of a contract to Adelphia Business Solutions, Inc. under request for proposals (RFP) No. F34608-03-R-5012, issued by the Department of the Air Force for commercial communication services at McConnell Air Force Base (AFB), Kansas. Southwestern Bell challenges the agencys past performance evaluation and its affirmative determination of Adelphias responsibility.In addition, Southwestern Bell asserts that Adelphia is ineligible for award because it falsely certified that none of its principals had been indicted.

We sustain the protest.

The RFP, issued December 12, 2002, provided for the award of a fixed-price contract for local voice and data communication services for McConnell AFB for a period not to exceed 5 years. Detailed proposal preparation instructions were provided, which required, among other things, that offerors submit their proposals in three volumes: (1) technical, (2) past performance, and (3) price and contracting information. With respect to the past performance volume, offerors were required to provide detailed information concerning relevant contracts performed within the last 5 years.

The RFP provided that proposals would be evaluated against the following evaluation criteria: technical, past performance, and price. Offerors were informed that, under the technical evaluation criterion, proposals would be evaluated on a pass/fail basis, that is:

A decision on the technical acceptability of each offerors technical proposal shall be made. Only those offers determined to be technically acceptable, either initially or as a result of discussions, will be considered for award.
Technically acceptable proposals would then be evaluated under the past performance and price criteria. The RFP stated that the agency would use the performance-price trade-off basis for award and that past performance and price were equally weighted. RFP at 20.

The RFP stated that in evaluating past performance risk the agency would use data from a variety of sources, including the offerors proposals and other government and commercial sources.[2] Offerors were also informed that the agency would place strong emphasis on the offerors record of past performance of jobs of comparable complexity and similar technical requirements, and that the offerors organization itself would be evaluated with respect to, among other things, [its] [r]ecord of integrity and business ethics. RFP at 21.

The RFP also included the Certification Regarding Debarment, Suspension or Ineligibility for Award, as required by Federal Acquisition Regulation (FAR) 9.409(a). The certification included in the RFP required the offeror to identify in its certification whether to the best of its knowledge and belief, . . . the offeror and/or any of its principals had been debarred, suspended, proposed for debarment or declared ineligible for award, or had been within a 3-year period prior to the date of its offer convicted of various crimes or had certain civil judgments against it, or was presently indicted for, or otherwise criminally or civilly charged, with the commission of certain identified offenses. RFP K at 6.

The Air Force received proposals from Southwestern Bell and Adelphia in response to the RFP. After discussions were conducted, both offerors were determined to be technically acceptable by the agencys technical proposal evaluation team (TPET). Adelphias evaluated 5-year price was $318,437.70 and Southwestern Bells evaluated price was $[Deleted]. Agency Report, Tab 15m, Price Competition Memorandum, at 1.

The agency evaluated the firms past performance, relying upon the offerors past performance proposal volumes, survey input from previous customers, and the agencys own knowledge of the contractors performance on other government contractors. Both offerors were evaluated as very good under the past performance criterion. Agency Report, Tab 9, Past Performance Assessment, at 2. Adelphias rating was based upon the agencys judgment that Adelphia had very good performance under three identified contracts[3] and the pre-award survey recommendation of full award from the Defense Contract Management Agency (DCMA).[4] Id. at 1. With respect to Southwestern Bells past performance rating, the agency stated only:

[Southwestern Bell] was the only other company that submitted a bid. However, [Southwestern Bells] proposal was $[Deleted] higher. [Southwestern Bell] has several dozen contracts with this office, and their past performance is well documented within this office.
Id. at 2.

The contracting officer concluded:

Since both [Adelphias and Southwestern Bells] proposals were found to be technically acceptable, and since each Offeror received the same past performance rating (very good), the discriminating factor would be, in accordance with the evaluation criteria specified in the acquisition, the lowest evaluated price. Since [Adelphia] had the lowest evaluated price, they were determined to represent the greatest value, and consequently, [Adelphia] was awarded the contract.
Contracting Officers Statement at 4. This protest followed.

Southwestern Bell challenges the Air Forces evaluation of its and Adelphias past performance, complaining that the agencys determination that the two firms past performance ratings were equivalent is not rationally supported in the record.

In reviewing protests of alleged improper evaluations and source selection decisions, our Office examines the record to determine only whether the agencys judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement law. Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD 223 at 4. Generally, the evaluation of an offerors past performance is a matter within the discretion of the contracting agency, and we will not substitute our judgment for reasonably based past performance ratings. However, we will question such conclusions where they are not reasonably based, inconsistent with the solicitation criteria and/or are undocumented. Sonetronics, Inc., B- 289459.2, Mar. 18, 2002, 2002 CPD 48 at 3.

With respect to Adelphias past performance evaluation, Southwestern Bell states that the agency did not evaluate Adelphias record of integrity and business ethics, as required by the RFP. Southwestern Bell asserts that this failure is significant because Adelphias record of integrity and business ethics is unacceptable. In this regard, Southwestern Bell notes that three members of the Rigas family, who are currently majority shareholders of the awardees former parent corporation, Adelphia Communications Corporation, and that corporation itself have been charged by the Securities and Exchange Commission (SEC) with violating various provisions of federal securities laws. Quoting the SECs complaint for, among other things, injunctive and monetary relief against awardees parent company and members of the Rigas family, Southwestern Bell notes that the principals of the awardee stand accused by the government of committing the most extensive financial fraud ever to take place at a public company. See <www.sec.gov/litigation/complaints/complr17627.htm>. Subsequently, five individuals (including three Rigas family members) were criminally indicted by a federal grand jury, each on 16 counts of securities fraud, 5 counts of wire fraud, 2 counts of bank fraud, and 1 count of conspiracy. Although Adelphia Business Solutions, of which the awardee is apparently an affiliate, was spun off from Adelphia Communications Corporation in early 2002, the protester states that a majority of the shares of Adelphia Business Solutions stock were transferred to members of the Rigas family and to entities controlled by the Rigas family.[5]

The record shows that the Air Force did not evaluate Adelphias record of integrity and business ethics as part of its past performance evaluation, as was specifically required by the RFP. The Air Force does not assert that it performed such an evaluation, but merely argues that its very good rating of Adephias past performance was justified, given the information provided and reviewed. The record shows that the Air Force assessed Adelphias past performance as very good based only upon the survey responses it received from the three contract sources identified by Adelphia in its proposal and the DCMA pre-award survey. See Agency Report, Tab 9, Past Performance Assessment, at 1; Contracting Officers Statement at 3. The past performance surveys, however, did not seek or receive any information concerning Adelphias record of integrity or ethics. [6] Furthermore, as asserted by the protester, Adelphia performed these three referenced contracts while the indicted members of the Rigas family had significant ownership interest and control in the awardee and its parent companies. Given the specific RFP language, the charges brought by the SEC and the indictment of the Rigas family members should have been (but were not) evaluated as relevant information in the agencys assessment of Adelphias past performance. In short, because the agencys past performance evaluation was not in accord with the stated RFP criteria, we find the agencys evaluation of Adelphias past performance to be inconsistent with the RFP evaluation scheme and unreasonable. See Beneco Enters., Inc., B- 283512.3, July 10, 2000, 2000 CPD 176 at 7.

We also find no basis in the record to find reasonable the Air Forces evaluation of Southwestern Bells past performance. As indicated above, the agencys entire explanation of its evaluation rating of the protesters past performance was that Southwestern Bell had a dozen contracts with the Air Forces procuring office, that these contracts were well documented, and that the protesters evaluated price was higher than that of the awardee. Agency Report, Tab 9, Past Performance Assessment, at 2. Despite the agencys statement that Southwestern Bells performance of contracts with its office were well documented, no documentation or explanation of that performance has been provided to support the agencys evaluation rating, which was equal to Adelphias rating. In fact, despite the protesters specific complaint of the paucity of the Air Forces explanation, the agency has provided no further information of any kind in support of its evaluation assessment. We find this inexplicable, given that the RFP provided for a qualitative assessment of the offerors past performance and for an integrated assessment of the merits of the offerors respective assessments and their evaluated price to determine the greatest value. See RFP at 20.

Thus, the agencys judgment that Adelphias slightly lower price reflected the best value to the government lacks a reasonable basis. As noted above, the RFP provided for a tradeoff between the offerors qualitative past performance rankings and their respective evaluated price. The Air Force concluded here that the two firms very good past performance rankings reflected essentially equal merit and therefore price became the discriminating factor. However, because the agency did not reasonably evaluate the firms past performance in accordance with the RFP criteria, the agency did not have a reasonable basis for its conclusion that the firms were essentially equal under this factor, so as to justify an award based solely on price. In fact, the comment regarding the protesters higher price in the past performance evaluation suggests that the agency did not qualitatively evaluate the offerors past performance, as required by the RFPs evaluation scheme, but improperly converted the procurement to one based upon low price and the submission of a technically acceptable proposal by an offeror with acceptable past performance. See Dewberry & Davis, B'247116, May 5, 1992, 92-1 CPD 421 at 5.

Under a reasonable evaluation of past performance, Southwestern Bells past performance rating might have been found to be superior to Adelphias, such that the Air Force would be required to conduct a tradeoff analysis to determine whether in fact Adelphias slightly lower price represented the best value to the government. Accordingly, we agree with Southwestern Bell that the Air Forces award selection is not consistent with the RFP evaluation and is unreasonable. See Trijicon, Inc, B'244546.3, June 22, 1992, 92-1 CPD 537 at 11.

Southwestern Bell also challenges the contracting officers affirmative determination of Adelphias responsibility. Simply stated, the protester argues that the agency failed to consider evidence about Adelphias integrity and business ethics in making its responsibility determination as is required by FAR 9.104-1(d).

As an initial matter, the Air Force argued that this aspect of Southwestern Bells protest should have been dismissed because the contracting officer allegedly had sufficient information upon which to find that Adelphia was responsible because the contracting officer was aware of the indictments of the principals of the awardees parent company.

Because the determination that an offeror is capable of performing a contract is largely committed to the contracting officers discretion, our Office will generally not consider a protest challenging an affirmative determination of responsibility except under limited, specified exceptions. 4 C.F.R. 21.5(c) (2003); Verestar Govt Servs. Group, B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD 68 at 3. One specific exception provided in the revised Bid Protest Regulations is that our Office will consider a protest that identifies serious concerns that a contracting officer in making an affirmative determination of responsibility failed to consider available relevant information or otherwise violated statute or regulation. 4 C.F.R. 21.5(c). As explained in the preamble to our revised regulations, the revision to our regulations was

intended to encompass protests, where, for example, the protest includes specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible.
67 Fed. Reg. 79,833-834 (2002).

We did not dismiss Southwestern Bells protest because on its face it fell within this exception, inasmuch as this well-documented, detailed protest raised serious concerns that the contracting officer failed to consider relevant information bearing on Adelphias record of integrity and business ethics, such that, if the allegations were true, it could not be said that the agencys affirmative determination of responsibility was reasonably based. The agencys dismissal request in response to the protest did not show that the agency gave any consideration to Adelphias record of integrity and business ethics in making its responsibility determination.[7]

Contracts may only be awarded to responsible prospective contractors. FAR 9.103(a). In making the responsibility determination, the contracting officer must determine, among other things, that the contractor has a satisfactory record of integrity and business ethics. FAR 9.104-1(d). In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility. FAR 9.103(b). Although the contracting officer is not required to explain the basis for his or her responsibility determination, [d]ocuments and reports supporting a determination of responsibility or nonresponsibility . . . must be included in the contract file. FAR 9.105-2(b).

The contracting officer, in his statement in response to the protest, states:

Because of the notoriety associated with Adelphia and its founders, [he] added various notes to block 23 (Remarks) of the SF-1403, Pre'Award Survey of Prospective Contractor, putting the DCMA Pre'Award Survey Monitor (PASM) on notice of the fact that [Adelphias] parent company . . . had allegedly filed for bankruptcy protection, had allegedly been charged with fraud by the [SEC], was allegedly being audited by the Pennsylvania Attorney General, and that the Adelphia CEO had been indicted for alleged conspiracy and fraud by the US Attorney for Southern New York.
Contracting Officers Statement at 2.

As noted above, DCMA performed a pre-award audit of Adelphia Business Solutions, Inc. and recommended a complete award. Agency Report, Tab 14, Pre-Award Survey of Adelphia, at 2. However, the pre-award survey did not comment upon Adelphias record of integrity and business ethics, or discuss in any way the indictments of members of the Rigas family or the charges brought by the SEC against Rigas family members and the parent company, Adelphia Communications Corporation. Nor has there been any information provided from or on behalf of DCMA that shows that DCMA considered the awardees record of integrity and business ethics, as requested by the contracting officer. Based upon this record, there is no basis to conclude that DCMA reviewed the awardees integrity and business ethics prior to recommending award.

In reply to the protesters comments detailing the problems relating to Adelphias integrity and business ethics and his responsibility determination, the contracting officer contends that he was aware of Adelphias alleged improprieties through various media outlets and the Internet. Contracting Officers Affadavit at 2. It was apparently based upon his awareness of allegations against Adelphia that the contracting officer requested the pre-award survey, which, as noted above, did not address Adelphias integrity and business ethics.[8] The contracting officer also asserts that he spoke to two other government officials who apparently provided no negative performance information about Adelphia, although their agencies did substantial business with them.[9]

The extent to which the contracting officer was aware of the allegations against Adelphias principals and parent company is neither documented in the record nor explained by the agency. Nevertheless, we believe that the contracting officers general recognition that there were allegations of misconduct concerning Adelphia is not alone sufficient to establish that the contracting officer reasonably assessed the awardees record of integrity and business ethics. In fact, the contracting officers statements in response to the protesters comments suggest that he may not have known relevant facts concerning Adelphias integrity and business ethics. That is, the contracting officer appears to argue that members of the Rigas family could not have any influence over Adelphia because these family members had resigned their positions as corporate officers and that their status as stockholders was and is basically irrelevant.[10] Contracting Officers Affidavit at 2. However, significant evidence has been presented by the protester to show that Rigas family members continued (and continue today) to own a controlling interest in Adelphia due to their majority ownership of class B (voting interest) stock. Moreover, the record supports the protesters assertion that some amount of debtor-in-possession financing has been provided to the awardee by Adephia Communications Corporation, the entity charged by the SEC with fraudulent conduct. Despite the apparent relevance of the potential control and influence of these Rigas family members and of Adelphia Communications Corporation, the record establishes that the contracting officer did not consider the extent of the Rigas family members stock ownership in Adelphia, and what influence or control over the awardee this ownership interest accorded them. Also, the record indicates that the contracting officer did not consider, nor was he apparently aware of, the relationship between the awardee and Adelphia Business Solutions (doing business as TelCove).[11]

Based upon this record, we find that the contracting officer simply assumed that Adelphia had an adequate record of integrity and business ethics. This assumption appears to have been based upon the award recommendation of the pre-award survey, which did not address in any way Adelphias integrity or business ethics. In any event, the record does not establish that the contracting officer obtained sufficient information to decide, or for that matter even considered, Adelphias record of integrity and business ethics. In the absence of any consideration of the involvement, control or influence of the indicted Rigas family members and Adelphia Communications Corporation in the awardee, the contracting officers statements of general awareness of alleged misconduct on the part of the Rigas family members and Adelphia Communications Corporation is not sufficient to show that the contracting officers affirmative determination of responsibility is reasonable. Compare Impresa Construzioni Geom. Domenico Garufi v. United States, 52 Fed. Cl. 421, 428 (2002) (agency failed to reasonably consider questions concerning an awardees integrity and business ethics) with Verestar Govt Servs. Group, supra (agency specifically and reasonably considered questions concerning the awardees integrity and business ethics in making its responsibility determination).

Southwestern Bell also protests that Adelphia falsely certified that none of its principals had been indicted within the 3 prior years. The protester argues that, because of this misrepresentation, Adelphia should be found ineligible to receive award. The Air Force denies that any misrepresentation occurred.

However, as admitted by the intervenor, Adelphia submitted a mistaken certificate that did not indicate that some of its shareholders had been indicted. See Intervenors Reply to Protesters Comments, Aug. 20, 2003, at 5. That is, although Adelphia certified that none of its principals had been indicted within the identified time period, in fact three members of the Rigas family had been indicted. The term principals is defined to include officers, directors, owners, partners, and persons having primary management or supervisory responsibilities within a business entity. See FAR 52.209-5. Given that these stockholders owned the majority of the stock, Adelphia does not dispute that the indicted Rigas family members are owners and therefore principals whose indictments should have been disclosed.

In Universal Techs. Inc.; Spacecraft, Inc., B-248808.2 et al., Sept. 28, 1992, 92-2 CPD 212 at 13, we noted that where an offeror has made an intentional misrepresentation that materially influenced the agencys consideration of its proposal, a proposal should be disqualified and a contract award based upon the proposal canceled. In Universal, we found that an offerors inaccurate completion of the same certificate that is at issue in this case did not disqualify the offeror there because it did not appear that the false certification was made in bad faith, nor did it materially influence the agencys affirmative determination of the offerors responsibility. Id. at 15.

Here, it is not clear from the record what impact, if any, the false certification had upon the contracting officer in making his affirmative determination of Adelphias responsibility. Nor is it clear that Adelphia intentionally misrepresented whether its principals had been indicted; in this regard, Adelphia asserts that it mistakenly believed that the intent of the certificate was to restrict the identification to those principals that had primary management or supervisory responsibility. See Intervenors Reply to Protesters Comments at 5. Nevertheless, some of the contracting officers statements suggest that the false certificate may have materially influenced the contracting officer. For example, the contracting officer in response to the protesters comments states that he did not consider the Rigas family to be principals any longer and that the management of TelCove has completely changed. See Contracting Officers Affidavit at 2. These statements reflect a misreading of the definition of principals as well as confusion on the part of the contracting officer as to which Adelphia entity was making this certification. In any case, the record shows that the agency did not know of, much less consider, the inaccuracy of Adelphias certification or how this should affect that firms eligibility for award.

We recommend that the Air Force determine whether Adelphias incorrect certification renders that firm ineligible for award. If the agency determines that Adelphia is eligible to continue to compete for award, the Air Force should re'evaluate the firms proposals in accordance with the RFPs past performance criterion, conduct further discussions (if necessary), make a new source selection decision, and, if Adelphia is selected for award, reasonably determine that firms responsibility. If Southwestern Bell is selected for award, the Air Force should terminate Adelphias contract and make award to Southwestern Bell, if otherwise appropriate. We also recommend that the protester be reimbursed the reasonable costs of filing and pursuing the protest, including attorneys fees. 4 C.F.R. 21.8(d)(1). The protesters certified claim for costs, detailing the time spent and costs incurred, must be submitted to the Air Force within 60 days of receiving this decision. 4 C.F.R. 21.8(f)(1).

The protest is sustained.

Anthony H. Gamboa
General Counsel








[1]

According to the pre-award survey, the awardee was Adelphia Business Solutions, Inc., of Wichita, Kansas, which is an affiliate or branch office of Adelphia Business Solutions (doing business as TelCove) of Canonsburg, Pennsylvania. Agency Report, Tab 14, Pre-Award Survey of Adelphia, at 5, 7. Adelphias proposal, however, was submitted in the name of Adelphia Business Solutions Investments, LLC. Agency Report, Tab 7, Adelphias Price and Contracting Information, DD Form 428. Adelphias technical proposal depicted in two charts that the Wichita office was the local team organization of the Adelphia Business Solutions corporation organization. Agency Report, Tab 7, Adelphias Technical Proposal, at 7-8. The proposal also identified Adelphia Business Solutions Investments LLC as the offeror and as being both located in Wichita, see, e.g., id., Adelphias Price & Contracting Information, DD Form 428, and in Canonsburg. See id., Adelphias Kansas Tariff Filing.
[2] With respect to the past performance evaluation, offerors were informed that past performance would be evaluated as either exceptional, very good, satisfactory, neutral, marginal, or unsatisfactory.
[3] There is no indication in either Adelphias proposal or the customers survey responses as to which Adelphia entity performed the three contracts.
[4] The pre-award survey found that the awardee was a well-organized and viable enterprise with sufficient resources available to perform the contract and an 11-year history of providing advanced communication services. On the down side, the financial situation is so complex that it is nearly irrelevant for this award inasmuch as all factors indicated a high financial risk, but the pre-award survey concluded that other factors (such as the relatively small size of the contract and Adelphias apparent improving financial situation) minimized the risk. Agency Report, Tab 14, Pre-Award Survey of Adelphia, at 7-8.
[5] For their part, the Air Force and the intervenor do not dispute that members of the Rigas family and Adelphia Communication Corporation have been charged with serious financial misconduct, and that the three members of the Rigas family have been indicted. On its behalf, Adelphia disputes the protesters representation of the amount of Adelphia Business Solutions stock transferred to members of the Rigas family and entities controlled by the Rigas family; however, the intervenor admits that the indicted Rigas family members own some a significant amount of Class A (financial interest) and Class B (voting interest) stock, and that Rigas family member and affiliated interests have enough Class B shares (51.6 percent) to constitute voting control. (We note that the intervenors analysis of the stock ownership of the Rigas family focuses on their ownership of stock in TelCove. As indicated above, the record appears to indicate that Adelphia Business Solutions, Inc., the apparent awardee here, is an affiliate of Adelphia Business Solutions, doing business as TelCove. See Agency Report, Pre'Award Survey of Adelphia, at 5, 7. The record is not clear as to the ownership interest of the Rigas family in the apparent awardee or to what extent TelCove exerts control over the apparent awardee.) The intervenor nevertheless states that notwithstanding this majority interest, the influence of the Rigas family was removed as a result of Unanimous Written Consents of the Board of Directors of Adelphia Business Solutions, Inc., whereby the awardee removed the three Rigas family members from positions as officers and employees of the Corporation on July 26, 2002. There is no indication in the record that this was considered by the contracting officer in making his responsibility determination.
[6] As discussed in detail below, DCMA also did not comment on Adelphias integrity or business ethics.
[7] As discussed below, as the case developed the record established that the agency did not reasonably consider Adelphias record of integrity and business ethics in making its responsibility determination.
[8] In his affidavit, the contracting officer notes DCMA recommended complete award, corporate financial fraud allegations and bankruptcy notwithstanding. Contracting Officers Affidavit at 2. This statement fails to recognize that DCMA did not address Adelphias integrity and business ethics, even though this was requested by the contracting officer.
[9] There is no documentation in the record of these two conversations or identification of what aspect of Adelphias past performance was discussed or even what Adelphia entity was being discussed.
[10] The contracting officer also admits in his affidavit that he did not know at the time of his responsibility decision that the Rigas family members had resigned their corporate offices, and only learned of their resignations in the protest submissions. See Contracting Officers Affidavit at 2. We note that this statement appears inconsistent with the Air Forces legal argument that the contracting officer had determined before his responsibility determination that Rigas family members were no longer officers of the corporation. See Air Force Response to Protesters Comments at 5.
[11] The contracting officers review apparently also did not consider which Adelphia entity was the offeror and awardee here, given the confusion in the record on this matter and the lack of comment by the contracting officer. See note 1 above.

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